Meadows v. Legursky
| Decision Date | 07 June 1990 |
| Docket Number | 87-7628,Nos. 86-6748,s. 86-6748 |
| Citation | 904 F.2d 903 |
| Parties | David MEADOWS, Plaintiff-Appellee, v. Carl LEGURSKY, Defendant-Appellant. Sam Blackburn ACORD, Petitioner-Appellant, v. Jerry HEDRICK, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thomas J. Gillooly, Deputy Atty. Gen., Charleston, W.Va., for defendant-appellant in No. 86-6748 and plaintiff-appellee in No. 87-7628.
Deborah Lynn McHenry, Charleston, W.Va., for plaintiff-appellee in No. 86-6748. Lee H. Adler, Beckley, W.Va., for defendant-appellant in No. 87-7628.
Roger W. Tompkins, Atty. Gen., Charleston, W.Va., on the brief, for defendant-appellant in No. 86-6748 and plaintiff-appellee in No. 87-7628.
James A. McLaughlin, West Virginia University College of Law, Morgantown, W.Va., on the brief, for plaintiff-appellee in No. 86-6748.
Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, CHAPMAN, WILKINSON and WILKINS, Circuit Judges, sitting en banc.
These consolidated cases raise questions about the role of the federal courts in deciding issues of constitutional law on collateral review of state court convictions. Sam Blackburn Acord appeals from the district court order dismissing with prejudice his petition brought pursuant to 28 U.S.C. Sec. 2254. David Meadows' Sec. 2254 petition was granted by the district court, but this Court, sitting en banc, reversed and remanded with instructions to dismiss the petition. The United States Supreme Court vacated this Court's judgment and remanded for reconsideration. We affirm the district court's judgment in Acord's appeal, but on different reasoning. After reconsideration of our previous judgment in Meadows' case, we now vacate the judgment of the district court and remand with instructions to dismiss the petition without prejudice for failure to exhaust.
In June 1983, Acord was tried in West Virginia for first degree sexual assault and related firearms charges. During his trial, he was cross-examined as follows:
Q. Okay, now, Trooper Hylton, who's seated over here, is the man who came down to Florida to get you in May with the warrant, wasn't he?
A. Yes, sir.
Q. All right, and you learned, when he got there he told you what you were charged with, didn't he?
A. Yes, sir.
Q. And then he went through the procedure of reading you your rights, didn't he?
A. Yes, sir.
Q. And you told him you weren't interested in talking with him about this, didn't you?
A. I told him I didn't know anything about it, which is the truth.
Q. Oh, you didn't tell him you didn't want to talk about it?
A. No, I just told him that I didn't know nothing about it, and he kept asking me, and I just kept telling him I didn't know nothing about it.
Q. All right, so you not only didn't tell him that you didn't want to talk about it, but when you got up to Atlanta and you all met your brother, you didn't have a further conversation in which you all said you, jointly to him, that you didn't want to talk to him about it, that's your evidence?
A. I don't recall.
Mr. File (defense counsel): Objection, your honor, I don't believe there has been any mention of Atlanta from anyone.
A. We never was in Atlanta, by the way.
The Court: I think this is proper cross-examination. Proceed.
Trooper Hylton was presented as a rebuttal witness by the State and testified that Acord, after his rights were read to him, said he would not talk to Hylton about the charges. During the prosecutor's closing argument, he characterized Acord's post-Miranda reaction as "I don't want to talk about it." Acord was convicted of sexual assault and sentenced to a 10-20 year term of imprisonment.
On direct appeal to the West Virginia Supreme Court of Appeals, Acord argued that the prosecutor's questions and argument violated his Fifth Amendment right to remain silent. The state appeals court, however, disposed of this issue on the following reasoning:
When the appellant was arrested, he told the arresting officer that he did not want to talk about the case. He was cross-examined about this statement at trial. While this line of cross-examination may well have been error under syllabus point 1 of State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), the defendant failed to object to this point at trial. Generally, this Court will not consider an error for the first time on appeal. See, e.g. State v. Parks, 161 W.Va. 511, 515, 243 S.E.2d 848, 851 (1978). We see no reason to deviate from this rule in this case.
State v. Acord, 336 S.Ed.2d 741, 745 (W.Va.1985).
After the West Virginia court's denial of his petition for rehearing, Acord filed a Sec. 2254 petition in the federal district court alleging, inter alia, a violation of his constitutional right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The case was referred to a magistrate who recommended that the Doyle claim be rejected on the merits because the questions on cross-examination " 'were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement' " (quoting Anderson v. Charles, 447 U.S. 404, 409, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980)). The district court adopted the report in full and denied relief on all claims. The district court granted a certificate of probable cause and Acord appeals.
II
Acord contends that federal review of his Doyle claim is not foreclosed by the state court's reliance on a procedural bar for two distinct reasons. First, he argues that the West Virginia courts' inconsistent application of the procedural bar precludes a finding that it is an "adequate state ground" upon which federal review may be foreclosed. Second, Acord claims that the State waived its right to raise the procedural default issue by failing to properly raise it before the district court. 1 We address these issues in turn.
A defendant's failure to observe a state's contemporaneous objection rule may be an "adequate and independent state ground" that bars federal habeas relief. Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977). This doctrine is a "well-established principle of federalism" which recognizes that a state's conduct of its criminal proceedings should be accorded respect by the federal courts. Id. However, the "adequacy" component of the Wainwright v. Sykes doctrine is only satisfied if the procedural bar is "regularly or consistently applied" by the state court. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988). Our review of the decisions involving West Virginia's contemporaneous objection rule convinces us that this procedural bar satisfies this requirement of consistent application and, consequently, constitutes an "adequate and independent state ground" upon which federal review may be precluded.
In State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445, 457 (1974), the West Virginia court stated that it was "firmly committed" to the general rule that unobjected-to error will not be reviewed on appeal. It further noted that the court had "only deviated from [the general rule] on few occasions, and then only in extraordinary situations." Id. The extent of such deviation from the general rule is the basis of Acord's contention that West Virginia applies its contemporaneous objection rule in an inconsistent manner.
Acord cites State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975), as the origin of the plain error rule by which the West Virginia courts will recognize errors of constitutional magnitude despite the lack of a contemporaneous objection at trial. This overstates the breadth of Starr. The court in Starr invoked a procedural rule of court 2 in order to reach an error which Starr had failed to assign in his opening brief. His counsel had in fact objected at trial. Id. 216 S.E.2d at 244. The plain error rule of Starr is nothing more than a vehicle by which the state appeals court may reach issues not properly raised in an appellant's brief.
Acord also cites State v. Mullins, 301 S.E.2d 173 (W.Va.1982), as an example of the state court's discussion of the merits of a possible Doyle violation despite the lack of an objection by defense counsel to the closing remarks of the prosecutor. The appeals court, however, found no Doyle violation, and it is not evident from the opinion whether the State even advanced the issue of procedural default. Moreover, in that very opinion, the court disposed of two other issues on procedural default grounds. Id. at 176-77.
Acord cites no other cases decided prior to his trial which would indicate inconsistent application of the state contemporaneous objection policy, and it is to this pre-trial period that we must look in ruling on this issue. Johnson v. Muncy, 830 F.2d 508, 514 (4th Cir.1987). We also recognize that consistent or regular application of a state's procedural default rules does not mean undeviating adherence to such rule admitting of no exception. See Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989) (). In the absence of a clearer showing by Acord, we believe the state court's declaration of its "general rule" in Thomas should be afforded respect. Thomas, 203 S.E.2d at 457. 3 We hold, therefore, that the procedural default posited by the state court is an "adequate and independent state ground" upon which federal habeas review may be precluded.
Wainwright v. Sykes announced a "cause and prejudice" doctrine which permitted habeas petitioners to escape the effect of a procedural default. 433 U.S. at 87-91, 97 S.Ct. at 2506-09. Acord concedes that the "cause" component of the test could not be satisfied by a contention that his trial...
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